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Washington and Lee Law Review - Vol. 73


by Carl Tobias

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals for the District of Columbia Circuit Chief Judge Merrick Garland, the experienced, moderate candidate, whom President Obama nominated to replace Justice Antonin Scalia. Because Judge Koh is an exceptional, consensus nominee—and the Ninth Circuit must have its entire judicial complement to resolve promptly, inexpensively, and equitably the nation’s largest appellate docket—her confirmation process merits scrutiny.

This piece analyzes Koh’s impressive record, judicial selection under President Obama, and the Ninth Circuit’s present circumstances. The paper concludes that Judge Koh is a highly accomplished, mainstream candidate and the appellate court desperately needs all twenty-nine of its members. Republican senators, however, did not cooperate, particularly after they had captured an upper chamber majority in the 114th Congress, a situation that this presidential election year significantly aggravates. The last section, therefore, proffers recommendations for Judge Koh’s approval.


by Kevin Golembiewski

This term, the Supreme Court will consider Fry v. Napoleon Community Schools. Fry implicates a circuit split on the proper scope of the exhaustion requirement in 20 U.S.C. § 1415(l) of the Individuals with Disabilities Education Act (IDEA). That section requires parents of students with disabilities to exhaust state administrative remedies “before the filing of a civil action . . . seeking relief that is also available under” the IDEA. Two different approaches to this requirement have emerged among the courts of appeals: an “injury-centered” approach and a “relief-centered” approach. Under the injury-centered approach, exhaustion is required when a child’s injuries are education-related. In contrast, the relief-centered approach demands exhaustion only if a parent seeks a form of relief that can be obtained under the IDEA. If the Supreme Court adopts the injury-centered approach in Fry, it should be cautious in its application of the approach. The Court’s application of the injury-centered approach could have important, unforeseen consequences for students with disabilities. The approach requires courts to consider what “educational” means under the IDEA—an analysis that bears on the scope of the IDEA’s substantive protections. And the Court has yet to provide guidance as to the definition of “educational.” Therefore, the Court’s application of the approach in Fry could have a significant impact on students’ access to special education services.


by Michael R. Doucette

In their article, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, Professors Turner and Redlich ostensibly compare North Carolina’s “open-file” criminal discovery with Virginia’s “closed-file” discovery. Based on their survey results, they conclude that open-file discovery is “a better guarantor of informed decisions and efficient process in criminal cases.” While we appreciate the authors’ justifiable concerns about the relative reliability of criminal convictions between Virginia and North Carolina, we must disagree with their methodology and, as a result, many of their conclusions. Rather than refute line-by-line, I will make a few brief general comments on behalf of Virginia’s prosecutors.


by Jennifer Wriggins

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race- based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to undercompensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.


by James M. Oleske, Jr.

More than a quarter-century has passed since the Supreme Court decided inEmployment Division v. Smith that religious accommodations are primarily a matter of legislative grace, not constitutional right. In that time, barrels of ink have been spilled over the merits of the Smith decision. But comparatively little attention has been given to the issue of how legislatures and other political actors should exercise their discretion to grant or deny specific religious accommodations. In their article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, Professor Hillel Levin, Dr. Allan Jacobs, and Dr. Kavita Arora aim to fill that critical gap. They propose a specific methodology for political actors to use in considering requests for religious exemptions—with the goal of bringing more consistency to the accommodation project—and their proposal has much to recommend it. This Response argues, however, that the Authors’ argument for their proposal suffers by trying to do too much. Instead of offering their proposal solely as a prudential tool for policymakers, they also frame it as a constitutional tool that judges can use to enforce the Religion Clauses of the First Amendment. As detailed in this Response, the Authors’ effort to have their proposal serve this second function runs into serious problems that can only distract from their primary mission. Accordingly, this Response suggests that the Authors refocus exclusively on that primary mission in future efforts to advance their proposal and offers a few suggestions for how the Authors might seek to operationalize their test in the political realm.


by David H. Moore

When U.S. Courts adjudicate transnational matters, they risk two forms of judicial imperialism. The first—unilateral imperialism—involves adjudication by a single state at the expense of multilateral forms of resolution or global governance. The second—sovereigntist imperialism—threatens the sovereignty of other states who might wish to resolve the controversy themselves. The risk of imperialism may lead U.S. courts to hesitate to adjudicate transnational claims. In Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “Judicial Imperialism,” Professor Hannah Buxbaum highlights that in addition to facing involuntary adjudication in U.S. courts, foreign states voluntarily sue in U.S. courts as well. The phenomenon of foreign states as plaintiffs, she argues, undermines concerns for imperialism and counsels in favor of U.S. judicial resolution of transnational matters.

Buxbaum’s focus on foreign states as plaintiffs is an important contribution. The implications of the focus, however, are more circumscribed than her article might suggest. The fact that foreign states occasionally sue in U.S. courts means that adjudication of transnational claims by U.S. courts does not always constitute unilateral imperialism. Rather, suits by foreign states may be a form of global governance. When it comes to concerns for sovereigntist imperialism, by contrast, foreign invocation of U.S. jurisdiction fails to undermine the sovereignty concerns that arise when U.S. courts adjudicate against the will of foreign states. First, the typical claims foreign states assert as plaintiffs themselves show respect for sovereignty. Second, consent matters, and in nonconsensual cases sovereignty concerns continue to exist. Third, notions of reciprocity do not automatically justify involuntary adjudication due to foreign state invocation of U.S. jurisdiction. More is needed to conclude that the phenomenon of foreign states as plaintiffs justifies adjudication against the will of those states.


by Doriane Lambelet Coleman

This Response to Professors Levin, Jacobs, and Arora’s article, To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, focuses on their claim that the law governing religious exemptions to medical neglect is messy, unprincipled, and in need of reform, including because it violates the Establishment Clause. I disagree with this assessment and provide support for my position. Specifically, I summarize and assess the current state of this law and its foundation in the perennial tussle between parental rights and state authority to make decisions for and about the child. Because these are featured as examples in their work, I also summarize and assess the current state of the law on vaccinations and male circumcision. I conclude with some thoughts on Levin, Jacobs, and Arora’s provocative suggestion that the law governing religious exemptions to medical neglect (as reformed according to their terms) might provide a template for addressing other accommodation claims such as those of religiously-motivated opponents of gay marriage.


by Miriam H. Baer

This Response addresses Jenia Turner and Alison Redlich’s comparative analysis of criminal discovery practices in two neighboring states, Virginia and North Carolina. Whereas Virginia adheres to the traditional, category-driven approach, North Carolina requires its prosecutors to disclose the contents of their “file,” with some notable exceptions.

Open-file discovery has quickly become a fertile source of debate among scholars and practitioners. Turner and Redlich have devised a valuable survey to test theoretical claims commonly asserted by open-file discovery’s opponents and supporters. Unsurprisingly, the authors find that disclosure is generally broader in North Carolina (an open-file state) than in Virginia. More notable is the fact that the North Carolina prosecutors who answer the survey seem less opposed to open-file discovery than their Virginia counterparts.

Those who favor the expansion of open-file discovery will find ample cause for celebration in several, but not all, of Turner and Redlich’s findings. In this Response, I express my own reservations, which rest partially on standard concerns with survey data, as well as the fact that some of open-file’s state level success may rely upon the availability of an entirely different criminal justice system (i.e., the federal system) for complex investigations and prosecutions.


by Peter G. Strasser

The “Cashgate” scandal has had far-reaching consequences for the southern African nation of Malawi and its people. Western donors suspended budgetary aid—circa $150 million annually—upon learning that civil servants and senior cabinet ministers in former President Joyce Banda’s administration had manipulated the government’s financial management system to embezzle more than $45 million over an eighteen-month period. As a precondition to the resumption of aid, the donors required that the government not only implement financial management reforms but also fully prosecute the perpetrators and recover the stolen assets. The donors’ position solidified when audits of Malawian government ledgers from 2009 to 2014 could not account for $356 million.

This essay examines whether Malawi’s Anti-Corruption Bureau (ACB) has the institutional capacity to achieve the prosecutorial benchmarks set by Western donors. Despite the obstacles inherent in an overstretched and underfunded criminal justice system, the ACB has made some progress, with fifteen convictions on theft and money laundering charges, and $1.4 million in cash and property recovered. Yet, as this essay observes, the quest to secure convictions and recover assets in the more complex cases of senior officials will become quixotic unless the government provides the ACB with sufficient independence, authority, and resources. Lacking ACB operational success, donors seem disinclined to resume direct budgetary support to Malawi. And as Western countries retract, China moves in, extending its influence.